Category Archives: State Supreme Court

There is
enough Supreme Court aversion to go around, even to the
state version of the highest court in the land.

Sometime before Christmas, among the multitudes of greeting
cards I received was the one you see here on the left. You probably
have to click on each image to see them clearly.

My favorite part is at the end of the inside part of the
card. “This card is
a parody and not actually from Chief Justice Roberts.” It’s a
good thing that disclaimer is there, because Roberts could sue and
eventually appeal the case all the way to himself.

The message of this card is that the U.S. Supreme Court is
secretive and accountable to no one. State lawmakers have a
different complaint about the state nine, and they
say partisanship is the answer.

The bill is unlikely to get a hearing, according to other news
reports and one local legislator. It sends a message,
nonetheless.House Bill 1051, sponsored by state
Rep. Richard DeBolt, R-Chehalis, and co-sponsored by 15 Republicans
and three Democrats, begins with this subtle epistle:

“The legislature finds that because the supreme
court has decided to act like the legislature and has
thus violated the separation of powers, the supreme court
should be considered partisan like the
legislature.“

Why the dig? Because the state Supreme Court has not only ruled
that the state is not meeting its paramount constitutional duty in
adequately funding education, the court has a bucket of solutions
it can choose from should the Legislature’s response to that
ruling be deemed inadequate.

Two local legislators, Democrat Sherry Appleton of Poulsbo and
Republican Jesse Young of Gig Harbor, are among the
co-sponsors.

Young did not respond to requests for comment. Appleton
responded to an email saying she believes the bill will not
even get a hearing. Asked why why she is backing it, she
replied that she isn’t. “It was just a message to make people aware
there are three branches of government, and we don’t make
constitutional rulings, and they should not tell us how to write
budgets.”

Asked what the court should be allowed to do in its role as
a check against the state government’s two other branches, Appleton
said the court’s job is to determine the constitutionality of
laws. “We have a job to do, and they are part of the solution,
but not doing the legislature’s business by telling us how to write
a budget. We know full well what we have to do, and we
will do it, in spite of the Supreme Court, not because of it.”

Among the solutions the court has discussed should the
Legislature fail to meet the court’s definition of “adequate”
education funding is one that would void the budget
completely, undoing all tax loopholes. It seems unlikely the court
would resort to that option first, but should it
employ anything there are legislators who believe it would be
out of its bounds.

Hugh Spitzer, a constitutional law professor at the
University of Washington, said any constitutional revenge by the
Legislature would require near unanimity of the lawmaking body,
which doesn’t seem likely. More within reach is
legislators stalling state law fixes requested by the courts.

Legislators have threatened the court financially in the past,
but that seems unlikely, too. Punishing the courts
financially “punishes the public if the public doesn’t have
access to the courts,” Spitzer said. Furthermore, in a pinch the
Supreme court could order funding from the state. It never has, but
it could.

Washington would not be the only state with partisan judges and
it wouldn’t be the first time the state had such a setup.

According to Judgepedia, seven states elect Supreme Court
justices in partisan elections. In two states the
justices are nominated in party primaries or conventions and other
states involve the parties in lower court assignments.

Spitzer said Washington judges were elected in partisan
elections until 1907. Partisanship came back came back a few years
later when Republicans were upset that a Democrat had been elected
in a non-partisan election. GOP legislators managed to put two more
seats on the bench, got two of their own elected and then made the
judge races non-partisan again.

Maybe this Legislature ought to consider doing that. If they did
it during presidential election years, when all our televisions are
affixed to Fox News and MSNBC, we might not notice. The
newspapers would cover it, but who reads those anymore?

You might have read the AP story about legislative
pushback coming from both sides of the aisle on the state Supreme
Court’s McCleary decision. Republican Sen. Michael Baumgartner has
a bill that would shrink the court from nine members to five. Part
of it is a response to what he sees as judicial overreach, but he
also said it would save money.

During AP’s Legislative Preview earlier in January I wondered if
state Sen. Mark Schoesler of Ritzville was chafing at the McCleary
decision follow-up when he said, “If money were the key to
education we’d all long for our kids to be in the Washington, DC
schools.” If we were not in the midst of a period in which the
court had demanded the Legislature spend more on schools, it would
be just another political statement. Coming at this time, however,
it seemed like it might be more than partisan posturing.

Jim Hargrove, a Democratic state senator, is also on the record
saying he sees “separation-of-power problems” with the court’s
approach.

Doug Cloud, who was one of the Republican candidates to replace
Jan Angel in the House, said he sees problems with the court’s
actions.

If legislators, almost all of whom say they will allocate more
money to education regardless, decide to challenge the court’s
authority, it could mark a precedential moment in Washington
history.

Meanwhile, Gov. Jay Inslee is proposing spending $200 million
more from this budget on education, including $74 million that
would give teachers a 1.3 percent raise. It would be the first
cost-of-living raise since 2008, despite the fact that voters
approved annual COLAs in 2000. The governor also cited not just the
decision, but the court’s statement that the Legislature was not
moving fast enough to get to full funding by 2018.

When I read on an Olympian blog that Washington
Supreme Court Justice Richard Sanders didn’t heckle U.S. Attorney
General Michael Mukasey during a Federalist Society speech in which
Mukasey collapsed, I read that to mean that Sanders wasn’t the one
yelling “Tyrant.” You can hear it at this link, once you
get to 17:28. The collapse happens much later and if that’s all you
want to see you can see it quickly on YouTube.

If you go to the blog I linked, you’ll read that the speculation
that it was Sanders began on Fox News, then Michelle Malkin wrote
that she hoped it wasn’t Sanders, because “I knew, respected, and
greatly admired Justice Sanders when I worked at the Seattle Times
in the 1990s.”

What Sanders was reported as telling the Olympian’s Adam Wilson
was, “As to that, I don’t have any comment. But I wasn’t there when
he collapsed. I heard it on television the next morning, I was very
sorry to hear it.”

In that quote he’s not saying he didn’t say it, he’s saying he
wasn’t there when Mukasey collapsed, which, given how long after
the “Tyrant” yell Mukasey’s collapse was, is entirely
plausible.

Nonetheless, Sanders now admits he was the guy. In a statement
he released he wrote, “The program provided no opportunity for
questions or response, and I felt compelled to speak out. I stood
up, and said, ‘tyrant,’ and then left the meeting. No one else said
anything. I believe we must speak our conscience in moments that
demand it, even if we are but one voice.”

He does not characterize it as heckling. You can read the entire
comment below.

On Wednesday’s Bremerton City Council agenda is one item that
for the past five years has been a pro forma event, the passing of
the 1 percent property tax levy increase.

This year, however, the city has all the legal right in the
world to throw upcoming election margins to the wind and grab 6
percent. Council members appear in no mood to do that, heeding Gov.
Chris Gregoire’s plea that local governments not rush for the cash
in light of the overturned Initiative 747.

The council will also effectively lower its business and
occupation tax by increasing the exemption from $40,000 to $60,000.
This is part of the city’s intended move to eventually eliminate
the tax completely to give businesses something of a break and make
the city competitive with the county.

In covering
Thursday’s State Supreme Court decision, which overturned
Initiative 747’s 1 percent property tax cap, the most important
question we wanted to answer was whether your taxes were likely to
go up beyond the former standard. In the short term it would appear
they won’t. There are 43 different taxing districts in the county
and we haven’t found one that would definitively say it would go
for more than the 1 percent. Even County Commissioner Josh Brown’s
complaints amounted to little more than
calling for a discussion of “systemic solutions.” His
unwillingness to respond to how the county would respond could mean
something and gives us all reason to watch Port Orchard closely,
but there’s been no change so far.

Kitsap County Assessor Jim Avery provided some more numbers of
interest on this issue. Before 747, taxing districts serving fewer
than 10,000 people had the straight 6 percent standard. Districts
above the 10K mark, however, were limited to inflation or 6
percent, whichever was less. They could get the 6 percent, however,
by officially declaring “substantial need” and passing it with a
majority-plus-one vote. In Bremerton it would have meant a 6-3
vote. In Poulsbo it would have to be 5-2.

I’m treading into Bob Meadows territory for the next two
paragraphs. I welcome his correction.

If a taxing district didn’t levy the full amount one year, it
could bank it and draw it in the future. Since 747’s limits set the
rate at 1 percent, smaller districts built up a bank of 5 percent a
year. The 30 percent number gets thrown around, but it would be
more because it compounds from one year to the next. According to
my math, it’s about 35 percent. In the worst-case scenario, it
means a taxing district that charged you $100 in 2001 and planned
to charge you $106.51 in 2008 could instead levy $141.85, or
thereabouts. It’s more complicated than that, but that’s the
idea.

For the bigger districts the “very rough” number is 7.24
percent, according to Avery. That’s the sum of the annual inflation
numbers, minus the 1 percent each year.

However, using the same formula I used before, it means a
district that charged you $100 in 2001 and planned to charge you
$106.51 in 2008 could instead levy $117.21. If the district
declared a “substantial need” need this year, that number goes up
about $4.

These are all vagaries, of course, because they don’t add 1
percent directly to your property and no one has announced anything
other than 1 percent yet.

Chris Dunagan reported:

“But the 2008 budget could still be out of balance by $2 million
without staff cuts.”

Avery said the county’s estimated banked capacity is about $1.8
million.

The long-term impact, however, will depend largely on the
Legislature. In our calls to local legislators the support for the
1 percent cap was pretty strong. It wasn’t unanimous, but it was
strong. Tim Eyman kind of chuckled when I told him about my
conversations with local legislators. He said the only legislator
who mattered was House Speaker Frank Chopp. “Frank Chopp decides
everything,” he said. The speaker has not commented.

The governor called for “a cap,” which doesn’t mean 1 percent.
As I wrote in my story, Eyman said he’d consider crafting another,
more restrictive, initiative if the Legislature does anything other
than put 747’s limits back in place.

The 5-4 court decision is based on the fact that the ballot
measure told voters they were dropping the cap from 2 percent to 1
percent. In coming to that conclusion, the majority cited a
previous case, Washington Association of Neighborhood Stores v.
State of Washington, which included:

“Citizens or legislators must not be required to search out
amended statutes to know the law on the subject treated in a new
statute. Under article II, section 37, a new statute must
explicitly show how it relates to statutes it amends.”

The majority took that statement and determined:

“Thus, a significant purpose of article II, section 37 is to
ensure that those enacting an amendatory law are fully aware of the
proposed law’s impact on existing law.”

There was included an argument in another case where the court
upheld a 1994 law that amended a 1993 law that was later ruled
unconstitutional. The majority reasoned that the earlier law had
not yet been ruled unconstitutional, so the amendment could stand.
In the case of 747, when voters went to the polls, the law they
were amending in the ballot, I-722, had already been struck
down.

So in parts of the ballot 747 told you that you were reducing
the cap from 2 percent to 1 percent, when in fact you were reducing
the cap from 6 percent to 1 percent.

“Here, if a voter simply read the text of the initiative, he or
she would have understood that I-747 reduced the property tax levy
limit from two percent to one percent. Simply put, a voter reading
the text of the initiative would have perceived a much smaller
impact on government coffers than would actually occur under I-747,
a fact the dissent ignores. The text of the initiative misled
voters about the substantive impact of the initiative on existing
law.”

The majority argued that it’s the information on the ballot
measure that matters and dismissed the argument that the voters’
pamphlet had the correct explanation. But the majority addressed
the pamphlet and said it contained some of the same incorrect
information than was on the ballot, so the pamphlet was
ambiguous.

The court acknowledged that this kind of problem means those who
would launch initiatives would have to wait until the courts had
ruled before filing, but that waiting was better than having an
eventually unconstitutional law on the ballot.

“Although we presume the validity of initiative measures and
respect the right of Washington’s citizens to exercise this
important privilege, article II, section 37 was designed to protect
voters and legislators from confusing or misleading information and
to maintain the integrity of the law-making process. Thus, where we
must weigh delay for initiative proponents against constitutionally
prescribed clarity for the voters, the constitution must
prevail.”

The four dissenters responded:

“No reasonable argument can be sustained that voters were in any
way misled or confused by the effect of I-747, which expressly and
was specifically aimed at lowering the tax growth to one percent.
The majority seems to suggest that the voters are unable to think
or read for themselves, when in fact our democratic process is
based on the assumption that voters do in fact read and understand
the impact of their votes.”

Others have answered another question I’ve been asked a lot. Who
were the judges?

The majority were Bobbe Bridge, Barbara Madsen and Susan Owens,
joined by two pro tems, Stephen Brown and Teresa Kulik.

The pro tems were there because Justice Mary Fairhurst was in
the AG’s office when it defended 722 and James Johnson helped with
747. They recused themselves from this issue.

The response I’ve seen in the papers and heard on the radio have
almost all come from the outraged, people who argue, “The court
thinks we’re stupid.” I agree that voters probably knew what they
were doing. I would speculate that if the ballot measure had been
worded correctly it would have changed so few votes as to not
matter.

But I also wonder why there are so few people arguing that
perhaps the court is right that the one place we should demand
absolute accuracy is on a ballot or in a law.

I think the answer starts with what Bob Meadows wrote in a story
comment: “The majority opinion shows why cynics say that supreme
court opinions often start with a desired result and work backward
to try to rationalize that result in the words of the opinion.”

It isn’t just the cynics who say it. “You must remember one
thing. At the Constitutional level where we work, ninety percent of
any decision is emotional. The rational part of us supplies the
reason for supporting our predilections.” — Charles Evans Hughes,
Chief Justice, US Supreme Court (1930-1941)

Frankly, you could argue that sentiment applies not only to the
justices, but to many who have offered an opinion on their
decision.

In response to the state Supreme Court’s decision overturning
I-747, Gov. Chris Gregoire sent the following statement:

“I know that voters must be disappointed by the court decision
to overturn I-747. As we know, voters approved I-747 by a wide
margin in 2001.

“As Governor, I am asking the state, counties, cities and all
other taxing districts to assure me that they will not increase
property tax levies for their upcoming budgets as a result of the
court decision. In addition, I will be asking the Legislature, in
January, to work with me to thoughtfully reinstate a property tax
cap.

“We heard loud and clear on Tuesday evening that voters are
concerned about their tax burden. I believe that it is our
responsibility to move quickly, recognizing taxpayers’ concerns and
reinstating the will of the voters. “

One of the things I asked Eyman this morning is the Legislature
responds with anything other than the exact limits of 747, would he
then launch a new initiative for 2008. Eyman answered:

“Sure, but it will only be more restrictive.”

He said legislators and others who want something higher don’t
get that the 1 percent cap is the compromise position. He said
there are a lot of taxpayers who want property tax reductions and
local government types who want more than 6 percent per year.

All this stems from the State Supreme Court
agreed with a lower court decision that Initiative 747, which
limited local government property tax increases to 1 percent plus
new construction, was unconstitutional.

The 5-4 decision means local governments can, if they’ve got the
political guts/nerve to do it, increase property taxes by 6 percent
next year. Tim Eyman, who authored the initiative, said they also
could go back all the years the 1 percent law was in place and
collect the 5 percent for each year they didn’t get while an
unconstitutional law was in place.

I spoke to several legislators. Eyman said House Speaker Frank
Chopp, D-Seattle, is the only one who matters and he believes Chopp
will get the limits of 747 back into law.

State Rep. Sherry Appleton, D-Poulsbo, said she hopes the
Legislature doesn’t jump in as the “hero” on this the way it did
when Initiative 695, which reduced car tab fees to $30, was ruled
unconstitutional.

“What my hope is that the Legislature won’t just jump in without
thinking about it,” she said.

She said the court’s decision was good for cities and counties,
“because they’ve been suffering with that 1 percent limit.

She acknowledged that with the governor up for re-election and
with her party so far in control in the Legislature, the party
would be risking their political lives by doing anything other than
taking its own action to reinstate the 1 percent standard.

“That’s true. Part of why people are elected is to show courage
and leadership,” she said. “This is one time where we have to be
very careful. I don’t think it’s an easy thing to do.”

State Sen. Derek Kilmer, D-Gig Harbor, said he would support
legislation that would put 747’s limits back in place.

“There is a legitimate concern about property taxes and I’m
sensitive to make sure that people who’ve worked hard and play by
the rules don’t get taxed out of their homes,” Kilmer said.

The senator said state legislators can help local governments at
the same time by “not jamming” them with new rules without giving
them the means to enforce them. ”If there’s a proposal before the
legislature that we want local government to do something, it
should be important that we provide the funding to do it,” he
said.

Bremerton City Councilman Will Maupin said he doesn’t think the
decision will have any impact on his city’s 2008 budget process.
The council has on its agenda Wednesday a resolution to set the
2008 property tax levy in accordance with 747.

“I would be very surprised at this point that we would want to
do anything different than that,” he said.

He said the news probably arrived too close to the city’s budget
deadlines. “Besides that, we just got a clear message from the
people that they’re really unhappy with their tax situation,” he
said.

Bremerton voters Tuesday overwhelmingly turned down the city’s
request for a property tax hike to beef up park improvements. “With
the mood people are in right now I don’t see us doing anything
other than the 1 percent increase,” he said.

In an e-mail Eyman sent this morning, he wrote:

“We’re in for absolute chaos. For six years, local governments
(counties, cities, ports, library districts, fire districts,
cemetary districts, parks districts, etc.) have been held to a 1%
levy each year. Since I-747 no longer exists, local governments now
suddenly have the unused taxing authority that they’ve accumulated
over the past six years (5% per year — 6% instead of 1%). That
means that each local government now has the power to jack up
property taxes 30% this fall without a vote of the people (I-747
required voter approval — now that I-747 is overturned, voter
approval is no longer be required). Every local government knows
that if they don’t take advantage of the situation and unilaterally
increase taxes using this unused taxing authority, the Legislature
in 2008 might take that authority away.”

I also got comments from State Reps. Christine Rolfes and Kathy
Haigh, who both like the 1 percent cap, state Sen. Phil
Rockefeller, who is open to some wiggle room in whatever happens in
Olympia and Bremerton Mayor Cary Bozeman. I’ll post those later and
will continue to update this entry.

Read this story by the Olympian on the state Supreme
Court’s decision, which many of us characterized as “Lying is OK”
in political campaigns. It may have bearing on another case in
which the Supreme Court 5-4 that Bainbridge Island’s shoreline
moratorium ran afoul of the law.

Schellberg said he was “a little intrigued” by Chief Justice
Gerry Alexander’s concurring opinion in the case and hoped he would
elaborate.

Alexander provided the fifth, or majority, voice in the case
that pitted former Green Party candidate Marylou Rickert of Shelton
against the PDC, which fined her $1,000 after deciding she
deliberately made false statements about the voting record of state
Sen. Tim Sheldon in his 2002 re-election campaign.

The Court of Appeals rejected the finding and the Supreme Court
agreed, but Alexander and the other four justices in the majority
went too far “in concluding that any government censorship of
political speech would run afoul of the First Amendment to the
United States,” Schellberg said.

“The United States Supreme Court has ruled that defamation is
not protected … The government, thus, may penalize defamatory
political speech,” Alexander added in his half-page-long
opinion.

In the Bainbridge case many stories would lead you to believe
the city was absolutely wrong in doing the shoreline moratorium. In
reality, that was the opinion of four of the justices. The fifth,
Tom Chambers, voted against the city because the moratorium went
too long. Christopher Dunagan pointed out the distinction in
Chambers’ argument.

Breaking the 4-4 tie was Justice Tom Chambers, who agreed with
Fairhurst that moratoria are permitted under the law, but he
expressed outrage at the length of time that Bainbridge Island’s
moratorium continued.

“I write separately in part to state in unequivocal terms my
view that the city of Bainbridge Island’s year after year renewal
of a shoreline building permit moratorium was an act of stagnant
municipal government,” he said. “Those who govern fail the public’s
trust when they are unwilling, unable or simply neglect to roll up
their sleeves, gather the information necessary and make the tough
decisions they are elected to make.”

So, calling all lawyers, does Chambers’ acceptance of moratoria
in his otherwise rebuke of the island mean that moratoria are
actually permitted?

The Olympian has the story about the state Supreme Court’s 5-4 decision
that strikes a law that made lying in campaign ads illegal.

The court sided with former Green Party candidate Marylou
Rickert of Shelton, whose brochure included statements about Sen.
Tim Sheldon that were judged untrue by the state Public Disclosure
Commission.

The case was decided on a split 5-to-4 ruling. Justice Jim
Johnson wrote the majority opinion, which said the state law was
unconstitutional.

“The notion that the government, rather than the people, may be
the final arbiter of truth in political debate is fundamentally at
odds with the First Amendment,” Johnson wrote.

Justice Barbara Madsen wrote the dissent that said the majority
ruling “is an invitation to lie with impunity.” She wrote that it
was wrong to say “oppressive government regulation is at issue in
this case.”

“When cases decided by the United States Supreme Court are
properly applied, it is obvious that (the challenged law) infringes
on no First Amendment rights,’’ Madsen wrote in a 30-page decision
supported by Justices Bobbe Bridge, Tom Chambers and Mary
Fairhurst.